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ORDINANCE

ON ANTI-SUBSIDY FOR IMPORTS INTO VIETNAM

(No. 22/2004/PL-UBTVQH11)

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10 of December 25, 2001 of the 10th National Assembly, the 10th session;

Pursuant to the December 26, 1991 Law on Import Tax and Export Tax, which was amended and supplemented by the July 5, 1993 Law Amending and Supplementing a Number of Articles of the Import and Export Tax Law and the May 20, 1998 Law Amending and Supplementing a Number of Articles of the Import and Export Tax Law;

Pursuant to November 26, 2003 Resolution No.21/2003/QH11 of the XIth National Assembly, 4th session, on the 2004 law- and ordinance-making program;

This Ordinance prescribes anti-subsidy for imports into Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Ordinance prescribes anti-subsidy measures; procedures and contents of investigation for application and the application of such measures to the subsidized imports into Vietnam.

Article 2. Interpretation of words and phrases

In this Ordinance, the following words and phrases shall be construed as follows:

1. Subsidy means financial supports rendered by the Government or Government agencies to organizations and individuals when they produce and/or export goods into Vietnam, which bring about benefits to such organizations and individuals.

2. Domestic production branches mean groups of domestic producers or their representatives that produce goods with volume, quantity or value accounting for a major proportion of the total volume, quantity or value of similar home-made goods, provided that such producers neither import nor have direct relationships with organizations and/or individuals that produce, export or import goods requested for the application of anti-subsidy measures.

3. Anti-subsidy tax means import surtax applicable to cases where subsidized imports into Vietnam cause or threaten to cause material injuries to domestic production branches.

4. Material injuries for domestic production branches means the considerable decline or restriction of the growth in terms of outputs, price level, level of goods consumption, profits, production growth rate, jobs for laborers, investment and other norms of domestic production branches, or the state that leads to difficulty for the formation of a new domestic production branch.

5. Threat to cause material injuries to domestic production branches means an immediate, obvious and provable possibility of material injuries caused to domestic production branches.

6. Similar goods mean those goods that have all the same properties as the goods requested for the application of anti-subsidy measures or, in cases where such goods don’t exist, mean those goods whose basic properties are similar to the goods requested for the application anti-subsidy measures.

7. Immaterial subsidy level means a subsidy level below 1% of the product value.

8. Particular subsidy means the subsidy applicable to only certain organizations, individuals or production branches or to only organizations, individuals or production branches within a certain geographical area of the country or territory subject to investigation for the application of anti-subsidy measures.

Article 3. Forms of subsidy

1. The Government or Government agencies transfer capital to organizations and/or individuals in form of capital allocation, share transfer, soft loans or guarantee for loans at an interest rate lower than that applied to loans without guarantee.

2. The Government or Government agencies leave out or don't collect revenues obligatorily payable by organizations and/or individuals.

3. The Government or Government agencies supply goods and/or services other than the common infrastructure or purchase goods and/or services at high prices and resell them to organizations and/or individuals at prices lower than market prices.

4. The Government or Government agencies contribute money to a financial assistance mechanism, and assign or order a private organization to apply one or many forms defined in Clauses 1, 2 and 3 of this Article.

5. Other subsidies other than those defined in Clauses 1, 2, 3 and 4 of this Article, which are determined in an equitable and reasonable manner and not contrary to international practices.

Article 4. Anti-subsidy measures

1. Imposition of anti-subsidy tax.

2. Acceptance of commitments made by organizations, individuals or Governments of goods-producing/exporting countries or territories to Vietnam's competent State agencies regarding the voluntary termination of subsidy, reduction of subsidy levels, adjustment of export prices or application of other suitable measures.

Article 5. Principles for application of anti-subsidy measures

1. Anti-subsidy measures shall apply only at necessary and reasonable levels to prevent or restrict material injuries to domestic production branches.

2. The application of anti-subsidy measures shall be effected only when investigation has been conducted and must be based on investigation conclusions according to the provisions of Articles 19 and 20 of this Ordinance.

3. Anti-subsidy measures shall directly apply only to subsidized imports into Vietnam under the provisions of this Ordinance.

4. The application of anti-subsidy measures must not cause harms to the national socio-economic interests.

Article 6. Conditions for the application of anti-subsidy measures

Anti-subsidy measures shall apply to subsidized imports into Vietnam only when the following conditions are fully met:

1. The imports are determined as having been subsidized according to the provisions of Article 3 of this Ordinance;

2. The imports defined in Clause 1 of this Article cause or threaten to cause material injuries to domestic production branches.

Article 7. State management responsibilities for anti- subsidy

1. The Government shall exercise uniform State management over anti-subsidy for imports into Vietnam.

2. The Government shall set up and define the organizational apparatus, specific functions, tasks and powers of anti-subsidy agencies under the Trade Ministry, including:

a/ Anti-subsidy investigation agency (hereafter referred to as investigation agency), which shall investigate and review anti-subsidy cases and, in case of necessity, propose the Trade Minister to issue decisions on the imposition of provisional anti-subsidy tax;

b/ Anti-subsidy case-handling council, which consists of a number of permanent members and other members working on a case-by-case basis to examine conclusions of the investigation agency; discuss and decide by majority on subsidy or non-subsidy of imports into Vietnam, that cause or threaten to cause material injuries to domestic production branches; and propose the Trade Minister to issue decisions on the application of anti-subsidy measures.

3. The Trade Minister shall be held responsible to the Government for exercising the State management over anti-subsidy, decide on the application of anti-subsidy measures and take responsibility for his/her decisions.

4. The ministries, the ministerial-level agencies, the People's Committees of the provinces and centrally-run cities shall, within the ambit of their tasks and powers, have to coordinate with the Trade Ministry in exercising the State management over anti-subsidy and the application of anti-subsidy measures.

Chapter II

INVESTIGATION FOR THE APPLICATION OF ANTI-SUBSIDY MEASURES

Article 8. Grounds of investigation

1. Investigation for the application of anti-subsidy measures shall be conducted when there are dossiers requesting the application of anti-subsidy measures from organizations and/or individuals representing domestic production branches.

Organizations and/or individuals submitting dossiers requesting the application of anti-subsidy measures shall be considered as representing domestic production branches when meeting two following conditions:

a/ The volume, quantity or value of goods they produce or represent accounts for at least 25% of the total volume, quantity or value of similar goods of the domestic production branches;

b/ The volume, quantity or value of goods defined at Point a, Clause 1 of this Article and goods of domestic producers that support the submission of dossiers requesting the application of anti-subsidy measures must be bigger than the volume, quantity or value of similar goods of other domestic producers opposing the application of anti-subsidy measures.

2. The Trade Minister may issue investigation decisions when there are clear evidences that the subsidized imports cause or threaten to cause material injuries to domestic production branches.

Article 9. Dossiers requesting the application of anti-subsidy measures

A dossier requesting the application of anti-subsidy measures shall be sent to the investigation agency, consisting of:

1. A written request for the application anti-subsidy measures with the following contents:

a/ Names and addresses of, and other necessary information on, organizations and/or individuals requesting the application of anti-subsidy measures;

b/ Descriptions of the imports requested for the application of anti-subsidy measures, including their appellations, basic properties and use purposes, codes according to the current import tariff and current import tax rate applicable to them as well as their origins;

c/ Descriptions of the volume, quantity, unit price and value of goods defined at Point b of this Clause, imported within 12 months before the submission of the dossier requesting the application of anti-subsidy measures;

d/ Descriptions of the volume, quantity, unit price and value of similar goods produced in the country within 12 months before the submission of the dossier requesting the application of anti-subsidy measures;

e/ Information on the foreign Government's subsidy policies, subsidy situation and form;

f/ Information, data and evidences on material injuries caused or threatening to be caused to domestic production branches by subsidized imports into Vietnam;

g/ Names and addresses of, and other necessary information on, organizations and/or individuals producing or exporting goods into Vietnam, which are requested for the application of anti-subsidy measures;

h/ The specific request for the application of anti-subsidy measures, the application time-limit and extent;

2. Other relevant documents and information deemed necessary by organizations and/or individuals requesting the application of anti-subsidy measures.

Article 10. Decision on investigation for the application of anti-subsidy measures

1. Within fifteen days after receiving dossiers requesting the application of anti-subsidy measures, if deeming that such dossiers are incomplete according to the provisions of Article 9 of this Ordinance, the investigation agency must notify the dossier-submitting organizations and/or individuals thereof for supplementation of the dossiers.

2. The time-limit for dossier supplementation shall be defined by the investigation agency but must not be less than thirty days as from the date the concerned organizations and/or individuals are notified of the dossier supplementation.

3. Before the Trade Minister issues investigation decisions, the investigation agency must notify Vietnam's anti-subsidy regulations to the competent agencies of the countries or territories that produce or export goods requested for the application of anti-subsidy measures.

4. Within sixty days after receiving dossiers with full contents prescribed in Article 9 of this Ordinance, the Trade Minister must issue investigation decisions; in special cases, this time limit may be extended but for no more than thirty days.

5. Within fifteen days as from the date of issuance of decisions on investigation for the application of anti-subsidy measures, the investigation agency shall notify such decisions to organizations and/or individuals requesting the application of anti-subsidy measures as well as to competent organizations, individuals and/or agencies of the countries or territories that produce or export goods requested for the application of anti-subsidy measures, and announce such decisions to relevant parties.

6. The Trade Minister must not issue investigation decisions if organizations and/or individuals requesting the application of anti-subsidy measures withdraw their dossiers, except for the cases defined in Clause 2, Article 8 of this Ordinance.

Article 11. Parties involved in the investigation process

Parties involved in the investigation process include:

1. Organizations and/or individuals that submit dossiers requesting the application of anti-subsidy measures;

2. Foreign-based organizations and/or individuals that produce or export goods requested for the application of anti-subsidy measures;

3. Organizations and/or individuals that import goods requested for the application of anti-subsidy measures;

4. Home-based organizations and/or individuals that produce similar goods;

5. Domestic business-line associations that represent the majority of organizations and/or individuals producing or importing similar goods;

6. Foreign business-line associations that represent the majority of organizations and/or individuals that produce and/or export goods requested for the application of anti-subsidy measures;

7. Trade unions or other organizations that represent the interests of laborers of domestic production branches;

8. Organizations that protect the consumers' interests;

9. Vietnam's competent agencies;

10. Competent agencies of the countries or territories that produce or export goods requested for the application of anti-subsidy measures;

11. Other organizations and individuals whose rights and interests are related to the investigation process.

Article 12. Providing information and documents in the investigation process

1. The parties involved in the investigation process, defined in Article 11 of this Ordinance, shall have to provide truthful information and necessary documents at the request of the investigation agency.

2. In cases where necessary information and documents are not provided strictly according to its request, the investigation agency shall make decision based on available information and documents.

Article 13. Contents of investigation for the application of anti-subsidy measures

Contents of investigation for the application of anti-subsidy measures include:

1. Determination of subsidy;

2. Determination of material injuries and the threat to cause material injuries to domestic production branches.

Article 14. Determination of subsidy

The determination of subsidy shall be conducted according to the following provisions:

1. Determining subsidized imports into Vietnam, particular subsidy and level of subsidy for those imports;

2. Determining the total subsidy value. The calculation of the total subsidy value is prescribed as follows:

a/ In cases where the subsidy is a nonrefundable allocation, the subsidy value shall be calculated on the basis of the actual value of the allocation granted to the concerned organization or individual.

b/ In cases where the subsidy is granted in form of a loan, the subsidy value shall be calculated on the basis of the difference between the payable interest rate applicable to that loan under normal trade conditions and that actually paid by the concerned organization or individual;

c/ In cases where the subsidy is granted in form of loan guarantee, the subsidy value shall be determined on the basis of the difference between the payable interest rate applicable to non-guaranteed loans and the actual interest rate applicable to the guaranteed loan;

d/ In cases where the subsidy is granted in form of share transfer, the subsidy value shall be determined on the basis of the capital amount actually received by the concerned enterprise;

e/ In cases where the subsidy is granted in the form under which the Government or Government agencies purchase goods and/or services at prices higher that the market prices and resell them to organizations and/or individuals at prices below or equal to the market prices, the subsidy value shall be determined on the basis of the difference between the market prices and the actual prices already paid by the Government or Government agencies for such goods and/or services, or the difference between the purchase prices and sale prices of goods when such goods are resold by the Government or Government agencies to organizations and/or individuals.

3. The value of subsidy granted in other forms shall be calculated in an equitable and reasonable manner, not contrary to international practices.

Article 15. Determining material injuries and threat to cause material injuries to domestic production branches

The determination of material injuries and threat to cause material injuries to domestic production branches shall comply with the following provisions:

1. It must be based on concrete evidences;

2. The determination of the extent of material injuries or threat to cause material injuries to domestic production branches must be based on the examination of the following contents:

a/ The quantity, volume or value of the subsidized imports has been rising considerably due to the low sale prices, thus reducing the market shares of domestic production branches, changing the consumption structure and/or decreasing the productivity of domestic production branches;

b/ The imports' prices are low due to the subsidy, thus entailing the lower prices of home-made goods;

c/ The impacts of subsidized imports on domestic production branches as reflected in their economic, productivity and profit indexes;

d/ The impacts of subsidized imports in relation to the outputs of similar home-made products. In cases where this relation cannot be determined, such impacts shall be assessed through examination of the output of a group of certain products or one product among the most similar home-made products;

3. When goods imported from two or more countries or territories are all subject to investigation for the application of anti-subsidy measures, the investigation agency may assess impacts of the import of those goods from such countries or territories when it can determine:

a/ That the total value of subsidy for imports from every country or territory is considerable as is the volume of imports from each country or territory;

b/ The conditions of competition among the imports and those between the imports and home-made goods, which serve as basis for assessment of the impacts.

Article 16. Consultation

1. Before and during investigation, the investigation agency may organize consultation with parties involved in the investigation process, defined in Article 11 of this Ordinance, so as to create conditions for these parties to present their opinions and provide necessary information.

2. The parties involved in the investigation process are not necessarily be present at consultation sessions; a party absent at consultation sessions shall still have its interests related to the application of anti-subsidy measures guaranteed.

3. The consultation must not obstruct the process of investigation and application of anti-subsidy measures according to the provisions of this Ordinance.

Article 17. Information confidentiality

1. The investigation agency shall have to keep secret supplied information when receiving reasonable requests from the parties involved in the investigation process and shall request such parties to supply the summarized information that must be kept secret.

2. The parties involved in the investigation process are allowed to access information supplied to investigation agency, excluding information which need to be kept secret.

Article 18. Investigation time-limit

1. The time-limit for investigation for the application of anti-subsidy measures shall not exceed twelve months as from the date of issuance of an investigation decision.

2. In special cases, the Trade Minister may decide on extension of the investigation time- limit, which, however, must not exceed 6 months.

Article 19. Preliminary conclusions

1. Within ninety days as from the date of issuance of an investigation decision, the investigation agency shall announce preliminary conclusions on the contents related to the investigation process as defined in Articles 13, 14 and 15 of this Ordinance. In special cases, the time limit for announcement of preliminary conclusions may be extended but must not exceed sixty days.

2. The preliminary conclusions and principal grounds therefor shall be announced by appropriate modes to the parties involved in the investigation process.

Article 20. Final conclusions

1. Upon the completion of the investigation process, the investigation agency shall announce final conclusions on the contents related to the investigation process according to the provisions of Articles 13, 14 and 15 of this Ordinance.

2. The final conclusions and major grounds therefor must be notified through appropriate media to the parties involved in the investigation process.

Article 21. Stopping investigations

The Trade Minister shall decide to stop investigations in the following cases:

1. Organizations and/or individuals requesting the application of anti-subsidy measures withdraw dossiers at their own will;

2. The preliminary conclusions defined in Article 19 of this Ordinance contain one of the following contents:

a/ There’s no subsidy for the imports into Vietnam;

b/ The volume, quantity or value of subsidized imports into Vietnam is immaterial;

c/ The subsidy level is immaterial;

d/ There are neither material injuries nor threat to cause material injuries to domestic production branches.

Chapter III

APPLICATION OF ANTI-SUBSIDY MEASURES

Article 22. Imposition of provisional anti-subsidy tax

1. Sixty days from the date of issuance of an investigation decision, based on the preliminary conclusions, the Trade Minister may issue decision on the imposition of provisional anti-subsidy tax.

2. The provisional anti-subsidy tax rate must not exceed the subsidy level defined in the preliminary conclusions.

3. The payment of provisional anti-subsidy tax may be guaranteed by deposits or by other measures as prescribed by law.

4. The time-limit for the imposition of provisional anti-subsidy tax must not exceed one hundred and twenty days as from the date the decision on the application of this measure is issued.

5. The Trade Minister may extend time- limit for the imposition of provisional anti-subsidy tax, but for no more than sixty days.

Article 23. Application of commitment measures

1. After the announcement of the preliminary conclusions and before the end of the investigation stage, organizations and/or individuals producing or exporting goods subject to investigation or the Governments of goods-producing/exporting countries or territories may make commitments with the Trade Ministry on the voluntary termination of subsidy, reduction of subsidy levels, adjustment of export prices or application of other appropriate measures.

2. The Trade Minister may accept or not accept the contents of commitments or propose the adjustment thereof but must not force the concerned parties to make commitments.

3. The investigation agency shall publicly announce the contents of commitments to the parties involved in the investigation process.

4. If not accepting commitments of relevant parties, the Trade Minister must notify the reasons therefor and permit further investigation for the application of anti-subsidy measures under the provisions of this Ordinance.

5. The Trade Minister shall issue decision to stop anti-subsidy investigations and apply the commitment measure if deeming that the realization of such commitments shall not cause or threat to cause material injuries to domestic production branches.

The parties making the commitments must periodically supply the investigation agency with information and documents related to the commitment realization and prove the accuracy of such information and documents under the Trade Minister’s decisions.

6. In cases where the concerned parties fail to strictly comply with their commitments, thus causing or threatening to cause material injuries to domestic production branches, the Trade Minister shall issue decisions on further investigations for the application of anti-subsidy measures or on the application of anti-subsidy measures according to the provisions of this Ordinance.

Article 24. Imposition of anti-subsidy tax

1. In case of failure to reach commitments defined in Article 23 of this Ordinance, basing him/herself on the final conclusions and proposals of the anti-subsidy case- handling council, the Trade Minister shall issue decision to impose or not to impose anti-subsidy tax.

2. The anti-subsidy tax rate must not exceed the subsidy level defined in the final conclusions.

3. The time-limit for the imposition of anti-subsidy tax shall not exceed five years as from the date of issuance of a decision on anti-subsidy tax imposition.

4. The time-limit for imposition of anti-subsidy tax may be extended in cases where the Trade Minister issues decision to review the imposition of anti-subsidy tax under the provisions of Chapter IV of this Ordinance.

5. The investigation agency shall announce through appropriate media the imposition or non-imposition of anti-subsidy tax on the parties involved in the investigation process.

Article 25. Imposition of anti-subsidy tax with retrospective effect

1. In cases where the final conclusions determine that there are material injuries or threat to cause material injuries to domestic production branches and the provisional anti-subsidy tax had been imposed before the announcement of such final conclusions, the imposed anti-subsidy tax shall have retrospective effect.

2. The imposed anti-subsidy tax shall have retrospective effect on the imports for ninety days prior to the application of provisional measures if two following conditions are met:

a/ Such imports have been subsidized by foreign governments or Government agencies;

b/ The volume, quantity or value of subsidized imports into Vietnam increases unexpectedly, thus causing hardly redressable material injuries to domestic production branches.

3. Not to retrospectively collect tax differences when the applied anti-subsidy tax rate defined in the final conclusions is higher than the provisional anti-subsidy tax rate prescribed in Article 22 of this Ordinance.

4. To reimburse tax differences when the applied anti-subsidy tax rate defined in the final conclusions is lower than the provisional anti-subsidy tax rate prescribed in Article 22 of this Ordinance.

5. In cases where the Trade Minister issues decisions not to impose anti-subsidy tax, the collected provisional anti-subsidy tax amounts or other amounts paid as guarantees for the payment of provisional anti-subsidy tax under the provisions of Article 22 of this Ordinance shall be refunded.

Chapter IV

REVIEWING THE APPLICATION OF ANTI-SUBSIDY MEASURES

Article 26. Reviewing the application of anti-subsidy measures

1. Twelve months after the issuance of a decision on the application of anti-subsidy measures, the Trade Minister may decide on reviewing the application of anti-subsidy measures at the request of one or many relevant parties defined in Article 11 of this Ordinance and on the basis of examining evidences provided by such parties.

2. Twelve months before a decision on the application of anti-subsidy measures ceases to be effective, the Trade Minister shall issue decision to review the application of anti-subsidy measures.

3. The investigation agency shall review the application of anti-subsidy measures according to the provisions of Articles 9, 10, 11, 12, 13, 14, 15, 16 and 17 of this Ordinance.

4. The filling of procedures related to the reviewing process must not obstruct the application of anti-subsidy measures.

5. The time-limit for reviewing the application of anti-subsidy measures defined in Clauses 1 and 2 of this Article shall not exceed twelve months as from the date of issuance of the reviewing decision.

Article 27. Decisions on the results of reviewing the application of anti-subsidy measures

Upon the completion of the review of the application of anti-subsidy measures, the Trade Minister shall issue one of the following decisions:

1. To continue applying the anti-subsidy measures or extend the application thereof;

2. To adjust anti-subsidy tax rate or accept commitments corresponding to the review results;

3. To stop the application of anti-subsidy measures.

Chapter V

COMPLAINTS AND HANDLING OF VIOLATIONS

Article 28. Complaint and initiation of lawsuits

1. Within sixty days as from the date the Trade Minister issues decisions on the imposition of anti-subsidy tax, if the parties involved in the process of investigation and application of anti-subsidy measures disagree with such decisions, they may lodge their complaints to the Trade Minister.

2. Within sixty days after receiving complaints, the Trade Minister shall have to settle them; in special cases, the complaint-settlement time- limit may be extended but for not more than sixty days and such must be notified by appropriate modes to complaining organizations and/or individuals.

3. If past the time-limit prescribed in Clause 2 of this Article the Trade Minister has not issued complaint-settling decisions or the complaining organizations and/or individuals disagree with the Trade Minister's complaint-settling decisions, such organizations and/or individuals may initiate lawsuits at courts according to the provisions of Vietnamese law.

Article 29. Dispute settlement and violation handling

The settlement of disputes and handling of law violations on anti-subsidy for imports into Vietnam shall comply with Vietnamese law provisions; in cases where an international agreement which Vietnam has signed or acceded to contains different provisions, the provisions of such international agreement shall apply.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 30. Implementation effect

This Ordinance takes effect as from January 1, 2005.

Article 31. Guidance for implementation

The Government and the Supreme People's Court shall, within the ambit of their tasks and powers, detail and guide the implementation of this Ordinance.